On the day of the second trial, the court entered an order forfeiting the
animals on the ground that defendant had not posted a bond. Thereafter, the case went to
trial. The jury found defendant not guilty of all charges, and the court entered a judgment
of acquittal. Defendant appeals from the order forfeiting the animals. The state argues
that the order is not appealable. We agree.

Defendant asserts that the order of forfeiture is appealable under ORS
138.040, which provides, in part, that "the defendant may appeal to the Court of Appeals
from a judgment or order described under ORS 138.053 in a circuit court[.]" ORS
138.053(1) provides that a judgment or order in a criminal case is appealable only if it
imposes a sentence on conviction, suspends imposition or execution of any part of a
sentence, or makes a decision relating to probation. None of those events occurred here
or could have occurred here. There can be no sentence, probation or other sanction after
an acquittal. We are not aware of any other provision of ORS 138.010 to 138.310 that
would allow an acquitted defendant to appeal.

The dissent argues, however, that this case is a special statutory proceeding
that is appealable under ORS 19.205(4), which provides:

"An appeal may be taken from the circuit court in any special
statutory proceeding under the same conditions, in the same manner and
with like effect as from a judgment, decree or order entered in an action or
suit, unless such appeal is expressly prohibited by the law authorizing such
special statutory proceeding."

According to the dissent, the provisions of ORS 167.347 create a special statutory
proceeding. The problem with the dissent's argument is that it fails to recognize that the
essential nature of a special statutory proceeding is that it is separate from every other
proceeding. Because ORS 167.347 establishes a process that the statute expressly makes
a part of the underlying criminal case, it cannot be a special statutory proceeding.

The Supreme Court's primary discussion of ORS 19.205(4) (which at the
time was numbered ORS 19.005(4)) is in State v. Threet, 294 Or 1, 653 P2d 960 (1982).
The court emphasized that the distinguishing feature of a special statutory proceeding is
that it be separate from any other proceeding. As examples it mentioned the writs of
review and mandamus, habeas corpus, punishment for contempt, a proceeding under the
Corrupt Practices Act to compel the disclosure of expenditures, and appeals of trial court
decisions on review of administrative actions. 294 Or at 4-5. On the other hand, an order
denying a motion in the nature of corum nobis did not qualify, because the motion was
part of a criminal proceeding. Id. at 6. In Threet itself, the court held that an order
compelling a witness to testify before a grand jury was not an order in a special statutory
proceeding and, thus, was not appealable.

Later cases continue to treat separateness as the defining characteristic of a
special statutory proceeding. In Garganese v. Dept. of Justice, 318 Or 181, 864 P2d 364
(1993), the Supreme Court held that a proceeding challenging an administrative
investigative demand under the Unlawful Trade Practices Act (UTPA) was a special
statutory proceeding, because it was entirely distinct from any action prosecuting an
alleged violation of the Act. The dissent relies on Garganese to support its argument that
we have jurisdiction of this appeal. However, the decision in that case is both consistent
with Threet and supports our dismissal of this appeal.

The dissent also relies on State v. K.P., 324 Or 1, 921 P2d 380 (1996), in
which the defendant appealed from an order under ORS 137.225 that sealed the records
of her arrest and conviction for theft except for police investigation reports. After
rejecting two other possible statutory authorizations for appeal, the Supreme Court held
that the order was appealable under what is now ORS 19.205(4). Its reasons for rejecting
the two other possible sources of appellate jurisdiction are essential to understanding the
relevance of K.P. to this case. The court first noted that a motion to set aside a criminal
conviction or arrest was not in the nature of an action to punish a criminal violation but,
instead, had a rehabilitative purpose. The motion was not, therefore, a criminal
proceeding, and ORS chapter 138 did not govern an appeal. The court then rejected the
defendant's suggestion that the case was appealable, under what is now ORS
19.205(2)(c), as an order affecting a substantial right, made in a proceeding after
judgment. Instead, it held that the order was appealable under ORS 19.205(4) as coming
from a special statutory proceeding. K.P., 324 Or at 4-6.

The foundation for the court's analysis in K.P., thus, was that a motion
under ORS 137.225 to set aside a conviction starts a new proceeding from the original
prosecution; if it did not, one of the other statutes would have controlled the appealability
of the decision. The court determined that the proceeding in question was not part of the
criminal proceeding and was appealable for that reason. That is different from this case,
in which the statute expressly provides that the forfeiture proceeding is part of the
criminal case.

The final cases that the dissent discusses, State v. Cunningham, 161 Or App
345, 985 P2d 827 (1999), and State v. Curran, 291 Or 119, 628 P2d 1198 (1981), both
involve current ORS 19.205(2)(c). That statute does not apply in this case, because the
court entered the order of forfeiture before the judgment of conviction. In any event,
ORS 19.205(2)(c) is conceptually inconsistent with a special statutory proceeding under
ORS 19.205(4). In Cunningham, we held that an order in a criminal case that denied the
defendant's motion to seal certain records relating to defense expenses was appealable as
a post-judgment order that affected a substantial right. We concluded that, although the
motion was made in a criminal case, it was essentially civil in character and thus the civil
appeals statute controlled. We did not discuss the possible applicability of ORS
19.205(4). Indeed, if the court's order was a post-judgment order in the criminal case, it
could not have been a judgment in a special statutory proceeding.

In Cunningham we relied in part on Curran, in which the defendant did not
appeal from his conviction but instead appealed from a post-conviction punitive forfeiture
that was imposed under former ORS 471.665 (1979). Under that statute, a court could
order the sale of property used to transport contraband, pursuant to an order that it entered
after the conviction of the person. Former ORS 471.665(1) (1979). The forfeiture
apparently occurred on the entry of the order. In Curran, the court entered the order of
sale over a month after it entered the judgment of conviction. As a result, the court noted,
the appeal of the forfeiture was not an appeal from a judgment on conviction. Rather, the
forfeiture was in the nature of a civil penalty, and the civil appeal statutes therefore
applied. The court then concluded that the applicable statute was current ORS
19.205(2)(c), because the order was both final as to the forfeiture and came after
judgment. Although it also noted that current ORS 19.205(4) was "arguably applicable,"
it had no reason to decide the issue. Curran, 291 Or at 124-27.

Contrary to the dissent's suggestion, Curran supports our conclusion that
we do not have jurisdiction over this case. The forfeiture in that case was not a separate
proceeding. Rather, as the Supreme Court recognized, "the trial court was authorized to
proceed with the matter of forfeiture without the necessity of resort by the district attorney
to a new and separate cause[.]" 291 Or at 126. That conclusion is also inherent in the
court's reliance on current ORS 19.205(2)(c) for its jurisdiction, because that statute
requires that the order be made after judgment in the same case. The court decided
Curran a year before it decided Threet, so when it suggested that current ORS 19.205(4)
might also apply it did not have the benefit of the more careful consideration that it gave
that statute in the later case. The emphasis in Threet and later cases on separateness as an
essential element of a special statutory proceeding means that it is impossible to find
jurisdiction of the same order or judgment under both subsections. If the order is
appealable because it comes after judgment in the same case, it cannot be an order in a
special (and thus separate) statutory proceeding. Thus, holding that one of these
subsections applies necessarily means that the other does not.

We have followed Threet in more recent cases. Thus, in Strother and
Strother, 130 Or App 624, 628, 883 P2d 249 (1994), rev den 320 Or 508 (1995), we
followed Threet and held that a proceeding under the Abuse Prevention Act was a special
statutory proceeding. In doing so, we emphasized that the proceeding involved clearly
defined parties and was not part of any other judicial proceeding. In State v. Gangi, 66 Or
App 582, 675 P2d 181 (1984), we held that we had no jurisdiction over an appeal from an
order continuing a case for five years rather than placing the defendant under the
jurisdiction of the Psychiatric Security Review Board or discharging him. We agreed
with the state's reliance on an earlier case, which we held was consistent with Threet, to
show that there was no special statutory proceeding.

ORS 167.345 provides the background to ORS 167.347. Under that statute,
if there is probable cause to believe that an animal is being abused, a peace officer, after
obtaining a search warrant, may impound the animal. ORS 167.345(2). The court may
then order the impounded animal held at an animal care facility. The statute requires the
facility to provide adequate food and water and permits it to provide veterinary care.
ORS 167.345(3). The purpose of ORS 167.347 is to establish the method of paying for
the costs that the facility incurs in carrying out those responsibilities. Subsection (1)
permits the agency, before final disposition of the criminal charge, to petition for a court
order forfeiting the animal. Subsection (2) provides for a hearing on the petition. Under
subsection (3), the agency has the burden of establishing probable cause that the animal
was abused; if the agency meets that burden, the court shall order forfeiture unless the
defendant posts a bond or security deposit within 72 hours. Subsection (5) allows the
agency to draw on the bond or security deposit to cover its actual reasonable costs.
Finally, subsection (6) expressly provides that the statute is in addition to, not in lieu of,
ORS 167.350, which provides for forfeiture as a penalty on conviction.

After defendant was acquitted of violating ORS 167.315, he appealed the
forfeiture of his ownership interest in eleven horses and one donkey under ORS 167.347.
His appeal presents two issues: (1) Is the trial court's order requiring defendant to forfeit
his ownership interests in his animals appealable under ORS 19.205(4)? (2) Does the
forfeiture constitute an "excessive fine" under Article I, section 16, of the Oregon
Constitution? The majority's answers to those questions are incorrect for the reasons that
follow.

ORS 19.205(4) provides:

"An appeal may be taken from the circuit court in any special
statutory proceeding under the same conditions, in the same manner and
with like effect as from a judgment, decree or order entered in an action or
suit, unless such appeal is expressly prohibited by the law authorizing such
special statutory proceeding."

The majority concludes that ORS 19.205(4) is inapplicable to defendant's
appeal because ORS 167.347 provides that "the county or other animal care agency may
file a petition in the criminal action requesting that the court issue an order forfeiting the
animal to the county or other animal care agency prior to final disposition of the criminal
charge." The majority asserts, "Because ORS 167.347 establishes a process that the
statute expressly makes a part of the underlying criminal case, it cannot be a special
statutory proceeding." ___ Or App at ___ (slip op at 4). The majority's analysis proves
too much. In other words, the majority reasons that because the petition for forfeiture is
filed within the criminal proceeding, it necessarily follows that the judgment rendered on
the petition is part of the criminal proceeding for purposes of ORS 19.205(4). However,
the issue is more complicated than that because forfeiture proceedings are essentially civil
in nature. The legislature could have intended that a proceeding under ORS 167.347 be
separate from the criminal proceeding; two proceedings, one civil and one criminal,
proceeding at the same time under the cloak of the criminal proceeding but each
independent of the other in their nature and outcome.

The majority relies primarily on language from State v. Threet, 294 Or 1,
653 P2d 960 (1982), in support of its view that the legislature did not intend to afford the
right to appeal a judgment of forfeiture under ORS 167.347 to an unconvicted defendant.
The first observation to be made about all of the case law interpreting ORS 19.205(4) is
that there is no Supreme Court or Court of Appeals case of which I am aware that is on
point directly regarding whether ORS 167.347 should be considered a special statutory
proceeding under ORS 19.205(4). In other words, this case does not present the situation
where the Supreme Court's case law had become part of the statute as if it had been
written into the statute at the time of its adoption. The holding in Threet is no exception
to that observation. The issue in that case was whether orders of the circuit court
requiring witnesses to appear and testify before a grand jury were appealable under ORS
19.205(4). In deciding that question, the court focused on the effect of permitting an
appeal that would disrupt the substance of the grand jury process, a step in a criminal
proceeding that had been already commenced. Threet, 294 Or at 7. In contrast, this case
involves an forfeiture proceeding that is entirely discrete from the criminal trial process.
Thus, Threet does little to inform the inquiry of the legislature's intent regarding ORS
19.205(4) as it applies to the facts of this case.

Nonetheless, the Department of Justice in Garganese argued that the
investigative demand under ORS 646.618(1) was merely a constituent part of its
enforcement powers under ORS 646.632, rather than a separate proceeding. Therefore, it
followed that an appeal from a circuit court order requiring the plaintiffs to comply with
the department's investigative demand on them was impermissible under the predecessor
statute to ORS 19.205(4). That argument is similar in concept to the argument made here
by the majority. The court rejected the department's argument, holding that the procedure
for challenging a demand under ORS 646.618(1) was a separate and distinct judicial
proceeding from the department's enforcement powers under the Unlawful Trade
Practices Act because the investigative proceeding had clearly defined parties and
because it did not disrupt any other judicial proceeding.

When the forfeiture proceeding under ORS 167.347 in this case is
considered in light of the court's interpretation of ORS 19.205(4) in Garganese, the
analogy is apparent. ORS 167.345 through ORS 167.350 are statutes that are part of the
Oregon criminal code regarding offenses against animals. ORS 167.315 provides that a
person commits the crime of animal abuse in the second degree if the person
intentionally, knowingly, or recklessly causes physical injury to an animal. The person
need not be the owner of the animal to be culpable under the statute. In contrast, ORS
167.345 and ORS 167.347 authorize civil in rem proceedings regarding the animals
themselves, not unlike other forfeiture proceedings that are directed against title or
ownership interests in things. ORS 167.345 authorizes the seizure and impoundment of
endangered animals. ORS 167.347 provides that the county or other animal care agency
"may file a petition in the criminal action requesting that the court issue an order
forfeiting the animal * * * prior to final disposition of the criminal charge." (Emphasis
added.) In the event that a defendant is convicted under ORS 167.315, ORS 167.350
authorizes the sentencing court to require the defendant to forfeit "any rights * * * in the
animal," but forfeiture is also authorized under ORS 167.347 apart from any sentence.

Not unlike the relationship between ORS 646.618(1) and ORS 646.632 in
Ganganese, the provisions of ORS 167.345 and ORS 167.347 demonstrate that they
authorize separate proceedings within the meaning of ORS 19.205(4) from a criminal
action under ORS 167.315 and ORS 167.350. The parties in the civil forfeiture
proceeding are different from the parties in the criminal action and are clearly defined. In
the criminal proceeding, the parties were the State of Oregon and defendant. In the
forfeiture proceeding, the parties are Umatilla County, the Pioneer Humane Society, and
defendant.

Also, a proceeding under ORS 167.347 may be filed as part of the criminal
proceeding, just as an investigative demand under ORS 646.618(1) could occur as part of
a prosecution under ORS 646.632. Under ORS 646.618(1), an investigative demand is
not limited to serving a demand on a person suspected of violating the Unlawful Trade
Practices Act. Such a demand can be made on a person who is not a party in the
enforcement action. Similarly, a forfeiture proceeding under ORS 167.347 is not limited
to the person charged with a violation of ORS 167.315. Rather, it applies to anyone
whose animal is endangered, whether the owner or someone else perpetrated the abuse or
neglect. Most importantly, the existence of the forfeiture proceeding is not dependent on
the outcome of the criminal proceeding, nor does the forfeiture proceeding disrupt the
criminal proceeding. The facts in this case illustrate the point. The forfeiture order
against defendant was entered before he was acquitted of the charges under ORS 167.315.

The majority draws a fine line in its effort to distinguish Garganese and to
defeat the above analogy. It says that the element of the avoidance of disruption in
another proceeding "is primarily a reason for requiring that the proceeding be separate,
not a test of what constitutes [']separateness.[']" ___ Or App at ___ (slip op at 5 n 3). It
concludes, "Garganese, thus, is simply an application of Threet to a statute that expressly
contemplated separate proceedings." ___ Or App at ___ (slip op at 7). The majority's
analysis assumes the ultimate conclusion that it makes without considering that the civil
nature of ORS 167.347 makes it conceptually separate from the merits of the criminal
proceeding within which it is initiated and that the statutory procedure can be resolved
without disruption to the criminal process. If anything, the nexus between ORS 646.618
and ORS 646.632 is closer than the nexus between ORS 167.347 and a prosecution under
ORS 167.315. An investigation under ORS 646.618 could lead to a prosecution under
ORS 646.632. However, a petition filed under ORS 167.347 plays no role in an
adjudication under ORS 167.315.

Also, the majority's reasoning is inconsistent with the Supreme Court's
holding in State v. K.P., 324 Or 1, 921 P2d 380 (1996), where a post-judgment order
pertaining to a criminal proceeding was held appealable under the predecessor statute to
ORS 19.205(4). The defendant in K.P. had been convicted of theft in the second degree.
Subsequently, she brought a motion to seal the records of that misdemeanor conviction
pursuant to ORS 137.225. The trial court's order sealed some records but excluded others
from being sealed. The defendant appealed from that order. On appeal, the court first
concluded that the appeal provisions of ORS chapter 138 did not apply because the
statutory proceeding was intended to serve a rehabilitative function--the "antithesis of the
original criminal conviction." K.P., 324 Or at 6-7. Thus, the defendant in K.P. had no
ability to appeal the order under chapter 138, even though she had been convicted.
Moreover, her motion to seal the records did not affect the merits of the criminal
proceeding, nor did it disrupt or revive the criminal proceedings. Cf. State v. Endsley,
214 Or 537, 331 P2d 338 (1958) (holding that an appeal denying a petition for what was
essentially a petition for a new trial to reopen the criminal process was not separately
appealable.) This case is more like K.P. than it is like Endsley on which Threet relied.

The majority's reasoning begins with the unwarranted assumption that the
forfeiture order pertains to the merits of the criminal process. However, it does not
necessarily follow from the fact that the petition for forfeiture may be filed "in the
criminal action" that the judgment rendered on the petition is a part of the merits of the
criminal process. The motion to seal the records in K.P., although related to the criminal
proceeding, did not affect the process that led to the criminal judgment of conviction.
Similarly, the judgment of forfeiture in this case is not part of the underlying criminal
process and has no effect on defendant's acquittal.

"In each of those cases, a post-trial order that did not pertain to the merits of
the criminal trial was appealed, and, in each instance, the appellate courts
concluded that ORS chapter 138 did not bar the appeal and that [ORS
chapter 19] permitted the appeal." Id. at 350.

In Curran, the owner of a vehicle appealed an order forfeiting his motor
vehicle. Apparently, the vehicle had been seized when the owner had been arrested for
unlawful possession and transportation of cocaine. Similar to the forfeiture of the
animals in this case, the forfeiture in Curran was not part of the defendant's criminal
sentence. On appeal, the court asked the parties to identify the source of appellate
jurisdiction. Curran, 291 Or at 122. The court reviewed the sources that the parties
identified, including the provisions of ORS chapter 19 and ORS chapter 138, and held:

"We have reached the conclusion that ORS 19.010(2)(c)
[renumbered as ORS 19.205(2)(c)] is applicable. The order * * * was final
in disposing of the motion for an order of forfeiture. It affected a
substantial right and was made in a proceeding after the judgment of
conviction." Id. at 127.

The Curran court reached its conclusion even though it acknowledged that
"it could be argued that the proceeding occurred in court in connection with a completed
criminal action." Id. at 125 n7. In both Curran and Cunningham, the critical fact was
that the orders on appeal, although the result of motions filed in the criminal cases, "did
not pertain to the merits of the criminal trial." Cunningham, 161 Or App at 350. The
majority points out that Cunningham and Curran were decided under ORS 19.205(2)(c),
and it asserts that "ORS 19.205(2)(c) is conceptually inconsistent with a special statutory
proceeding under ORS 19.205(4)." ___ Or App at ___ (slip op at 8). It correctly argues
that, although the motions in those cases were made or could have been made in the
underlying criminal cases, the motions were essentially civil in nature. ORS 19.205(2)(c)
provides for appeal of "[a] final order affecting a substantial right, and made in a
proceeding after judgment or decree." The claim of conceptual inconsistency is
unpersuasive. ORS 19.205(2)(c) pertains to "final" civil orders. The forfeiture judgment
as to defendant's ownership of the animals in this case is as "final" as it can be and is in
the nature of a civil judgment. It imposes no criminal sanctions, only the loss of
defendant's property. In that respect, it is like the order sealing court records in
Cunningham and the order forfeiting the defendant's motor vehicle in Curran.

The majority's further reliance on Strother and Strother, 130 Or App 624,
883 P2d 249 (1994), rev den 320 Or 508 (1995), in which we held that a proceeding
under the Abuse Prevention Act, ORS 107.710, was a separate proceeding under the
predecessor of ORS 19.205(4), is somewhat curious. We said in that opinion that "[i]t is
instructive to consider what the court has held not to be a 'special statutory proceeding.'"
130 Or App at 628. We then focused on the holdings in Threet and Endsley, noting that
those cases involved proceedings where an appeal could disrupt or abort a criminal
proceeding. In contrast, a proceeding under the Abuse Prevention Act lacks such indicia,
as does a forfeiture under ORS 167.347.

Here, as in Garganese, there was no danger of disrupting another
proceeding because the forfeiture of defendant's property interests were unrelated to the
merits of the criminal proceedings against him. The outcome of whether there was
"probable cause to believe that the animal[s] [were] subjected to abuse, neglect or
abandonment" had no bearing on whether defendant was guilty of violating ORS 167.315.
Although the majority asserts that the filing of a notice of appeal of the forfeiture
judgment by defendant "would have deprived the trial court of jurisdiction to conduct that
trial[,]" ___ Or App at ___ (slip op at 11 n 5), there is no support for that proposition
unless the majority's underlying premise that the forfeiture was an integral part of the
criminal proceeding and that the criminal proceeding could not have gone forward
without a determination under ORS 167.347 is accepted. Certainly, there is no factual
reason why the criminal proceeding had to await the outcome of an appeal of the
forfeiture proceeding. In sum, the majority's ruling is unsupported by precedent and flies
in the face of the common-sense notion that a forfeiture proceeding under ORS 167.347 is
directed at different legal interests than the liberty interests involved in a prosecution
under ORS 167.315. Accordingly, I disagree with the majority's dismissal of defendant's
appeal.

The relevant portion of section 16 provides that "[e]xcessive bail shall not
be required, nor excessive fines imposed." Its purpose is self evident. A criminal
defendant should not be punished beyond what is just. See, e.g., State v. Ross, 55 Or 450,
474, 480, 104 P 596, 106 P 1022 (1910), appeal dismissed 227 US 150, 33 S Ct 220, 57 L
Ed 458 (1913) (holding a fine excessive because it was greater than defendant could pay
in a lifetime). My review of Oregon appellate case law reveals no case under section 16
that has facts similar to this case or that would aid us in analyzing defendant's argument.
However, the "excessive fines" language in section 16 is identical to the language in the
Eighth Amendment of the United States Constitution and, therefore, cases construing its
meaning in the context of civil forfeitures are instructive.

Defendant's property interests in his animals became subject to seizure and
impoundment under ORS 167.345 and forfeiture under ORS 167.347 only because there
was probable cause to believe that ORS 167.315, a criminal statute, had been violated. In
addition to the seizure of his property, defendant himself became a party charged with a
crime and subject to the criminal law processes. Later, the forfeiture petition was filed
during the criminal proceeding. At the forfeiture hearing, the petitioners had the burden
of showing that defendant's animals were subjected to abuse or neglect in violation of
ORS 167.315. In these kinds of cases, the federal courts have looked beyond whether the
nature of the action is "civil" or "criminal" to determine if the government sanction
constitutes "punishment" within the meaning of the Eighth Amendment.

For instance, in Austin v. United States, 509 US 602, 609, 113 S Ct 2801,
125 L Ed 2d 488 (1993), the Supreme Court addressed the applicability of the Excessive
Fines clause to in rem civil forfeitures under 21 USC § 881. Previously, Austin had been
convicted of violating federal drug laws. Subsequent to his conviction and in a separate
proceeding, the government sought forfeiture of his mobile home and auto body shop,
alleging that they had been used in the drug offenses for which Austin had been
convicted. The Eighth Circuit viewed the issue in a manner not unlike that held by the
majority. It ruled that the Eighth Amendment did not apply to civil actions for the
forfeiture of property to the government. The Supreme Court reversed.

The government argued to the Supreme Court in Austin that the Eighth
Amendment did not apply "unless the challenged government action, despite its label,
would have been recognized as a criminal punishment" at the time of the adoption of the
Eighth Amendment or unless the civil proceeding was so punitive that it must be deemed
criminal in nature. 509 US at 607. The court rejected the government's argument:

"'The notion of punishment, as we commonly understand it, cuts across the
division between the civil and the criminal law.' United States v. Halper,
490 US 435, 447-448, 104 L Ed 2d 487, 109 S Ct 1892 (1989). 'It is
commonly understood that civil proceedings may advance punitive as well
as remedial goals, and, conversely, that both punitive and remedial goals
may be served by criminal penalties.' Id. at 447, 104 L Ed 2d 487, 109 S Ct
1892. * * * Thus, the question is not, as the United States would have it,
whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but
rather whether it is punishment." Austin, 509 US at 610 (emphasis added).

In deciding whether the forfeiture of Austin's property was "punishment" or
"remedial," the court said,

"We previously have upheld the forfeiture of goods involved in customs
violations as a 'reasonable form of liquidated damages.' But the dramatic
variations in the value of conveyances and real property forfeitable under
§§ 881(a)(4) and (a)(7) undercut any similar argument with respect to those
provisions. The Court made this very point in [United States v. Ward, 448
US 242, 65 L Ed 2d 742, 100 S Ct 2636 (1980)]: the 'forfeiture of property
* * * [is] a penalty that ha[s] absolutely no correlation to any damages
sustained by society or to the cost of enforcing the law.'" 509 US at 621
(citations omitted).

Thus, the court concluded that both fixed-amount penalties and the forfeitures of property
constitute punishment if they are not solely remedial and occur as the result of prior
criminal proceedings. Id. at 618 n 12, 622 n 14.

When the facts of this case are compared with the facts in Austin and
Thurman, there is little difference. If anything, defendant should be in a better position
than Austin, who had been convicted of criminal charges. It is clear from those cases that
a civil forfeiture can constitute "punishment" under section 16 and the Eighth
Amendment when the forfeiture is not remedial in nature, whether the underlying action
is civil or criminal in nature and whether or not the defendant is convicted of a crime.
Here, defendant did not voluntarily place his animals with the humane society. They
were seized and impounded by the government because of pending criminal charges.
Had the animals been sold to pay for the humane society's cost of care and had the
balance from the sales price after compensating the humane society for their out-of-pocket expense been remitted to defendant, the forfeiture would not have been excessive.
But that is not what occurred here. As a result of the criminal prosecution against him,
defendant lost all of the value of his animals. To the extent of $2,700, the forfeiture could
be considered "remedial" in nature. Beyond that amount, it is necessarily "punitive." In
defendant's case, any punishment is necessarily excessive in light of his acquittal. The
framers of the constitutions could not have intended that the fortuity of acquittals could
operate to permit the government to obtain a forfeiture beyond that which would have
been available had there been a conviction.

Because defendant has been "punished" for his alleged criminal conduct by
the loss of the entire value of his animals, I dissent.

1. On appeal, defendant challenges neither the seizure of the animals nor their
placement with Pioneer.

"(1) If any animal is impounded pursuant to ORS 167.345 (2) and is
being held by a county animal shelter or other animal care agency pending
outcome of criminal action charging a violation of ORS 167.310 to
167.340, prior to final disposition of the criminal charge, the county or
other animal care agency may file a petition in the criminal action
requesting that the court issue an order forfeiting the animal to the county or
other animal care agency prior to final disposition of the criminal charge.
The petitioner shall serve a true copy of the petition upon the defendant and
the district attorney.

"(2) Upon receipt of a petition pursuant to subsection (1) of this
section, the court shall set a hearing on the petition. The hearing shall be
conducted within 14 days of the filing of the petition, or as soon as
practicable.

"(3)(a) At a hearing conducted pursuant to subsection (2) of this
section, the petitioner shall have the burden of establishing probable cause
to believe that the animal was subjected to abuse, neglect or abandonment
in violation of ORS 167.310 to 167.340. If the court finds that probable
cause exists, the court shall order immediate forfeiture of the animal to the
petitioner, unless the defendant, within 72 hours of the hearing, posts a
security deposit or bond with the court clerk in an amount determined by
the court to be sufficient to repay all reasonable costs incurred, and
anticipated to be incurred, by the petitioner in caring for the animal from the
date of initial impoundment to the date of trial.

"(b) Notwithstanding paragraph (a) of this subsection, a court may
waive for good cause shown the requirement that the defendant post a
security deposit or bond.

"(4) If a security deposit or bond has been posted in accordance with
subsection (3) of this section, and the trial in the action is continued at a
later date, any order of continuance shall require the defendant to post an
additional security deposit or bond in an amount determined by the court
that shall be sufficient to repay all additional reasonable costs anticipated to
be incurred by the petitioner in caring for the animal until the new date of
trial.

"(5) If a security deposit or bond has been posted in accordance with
subsection (4) of this section, the petitioner may draw from that security
deposit or bond the actual reasonable costs incurred by the petitioner in
caring for the impounded animal from the date of initial impoundment to
the date of final disposition of the animal in the criminal action.

"(6) The provisions of this section are in addition to, and not in lieu
of, the provisions of ORS 167.350." (Emphasis added.)

3. The court also noted that "[o]ne of the reasons for requiring that the judicial
proceedings be separate and wholly distinct is to avoid disruption of other judicial
proceedings." Garganese, 318 Or at 186. Avoiding disruption, thus, is primarily a reason
for requiring that the proceeding be separate, not a test of what constitutes separateness.
To the extent that the Supreme Court, in determining appealability, considers whether an
appeal would disrupt another proceeding, it is as an additional criterion, not as one of the
tests for what makes a proceeding separate and distinct. See id.

4. In a case that the Supreme Court decided the same day as Garganese, it
noted that "DOJ need not make a threshold showing at the investigative demand stage that
the recipient of the investigative demand, or that the entity under investigation, falls
within the definition contained in ORS 646.605(7) [describing part of the coverage of the
UTPA]. One legitimate aim of the investigation may be to discover whether [the
recipient's] practices are covered by the Act." Vendall Marketing Corp. v. Dept. of
Justice, 318 Or 189, 195, 863 P2d 1263 (1993).

5. This case illustrates the importance of the requirement that special statutory
proceedings be separate from other judicial proceedings. If defendant were entitled under
ORS 19.205(4) to appeal from the order that forfeited his interest in the animals, he
would file his notice of appeal in his criminal case, as he did here, because that is the only
case in which it could be filed. If he had done that before his second trial on the animal
neglect charges, the filing of the notice would have deprived the trial court of jurisdiction
to conduct that trial. See, e.g., ORS 19.270(1); ORS 138.083; Macy v. Blatchford, 154 Or
App 313, 324, 961 P2d 873, rev allowed 328 Or 194 (1998). We would then have had to
decide defendant's appeal from the forfeiture order before the case could have been
returned to the trial court for trial of the criminal charges. The requirement that special
statutory proceedings be separate to be appealable under ORS 19.205(4) avoids creating
situations, such as the one described here, in which people could obtain appellate review
of interlocutory orders. Tellingly, none of the cases on which the dissent relies involved a
situation in which appellate review under ORS 19.205(4) would deprive a trial court or
agency of jurisdiction to proceed with a pending matter. That is because none of them
violated the separateness requirement, as a decision in favor of defendant on the
jurisdictional issue in this case would.

6. As part of arguing that the forfeiture was an excessive fine, the dissent
emphasizes that the forfeiture is part of the criminal action, not separate from it. In doing
so, it shows that the forfeiture is not a special statutory proceeding and, thus, that we do
not have jurisdiction over this appeal.

7. Defendant does not assert that there is any constitutional infirmity in the
failure to provide in ORS 167.347 for sale rather than forfeiture of the animals, with the
owner receiving the proceeds that exceed the costs of sale and the agency's expenses.
Foreclosing a lien would normally require such a sale and disposition of the proceeds.
See ORS 87.206.

8. ORS 167.347(3)(a) provides that the petitioner in the forfeiture proceeding
"shall have the burden of establishing probable cause to believe that the animal was
subjected to abuse, neglect or abandonment in violation of ORS 167.310 to 167.340." A
conviction under ORS 167.310 to 167.340 requires proof beyond a reasonable doubt, not
probable cause.

10. See alsoState v. Arms, 60 Or App 400, 653 P2d 1004 (1982), rev den 294
Or 461 (1983). In Arms, the defendant, who was acquitted on a criminal charge, appealed
an order to pay costs incurred by the county for her court-appointed counsel. We held
that the judgment making her liable for the costs was appealable under former ORS
19.010(2)(c), renumbered as ORS 19.205(2).

13. The majority argues that it is internally inconsistent to assert that the
forfeiture proceeding is a separate statutory proceeding under ORS 19.205(4) from the
criminal proceeding against defendant, and then assert that the forfeiture proceeding is
part of the criminal punishment of defendant. However, "appealability" under Oregon
statutes is unrelated to whether government action constitutes "punishment" under section
16. The former depends on the intent of the legislature, while the latter depends on the
intent of the framers of the constitutions.

14. In Austin, 21 USC §§ 881(a)(4) and (a)(7) (1993) provided authorization for
the government to seek forfeiture of the defendant's property. Those statutes provide for
the forfeiture of:

"(4) All conveyances, including air craft, vehicles, or vessels, which
are used, or are intended for use, to transport, or in any manner to facilitate
the transportation, sale, receipt, posession, or concealment of [controlled
substances, their raw materials, and equipment used in their manufacture
and distribution]

"* * * * *

"(7) All real property, including any right, title, and interest
(including leasehold interest) in the whole of any lot or tract of land and any
appurtenances or improvements, which is used, or intended to be used, in
any manner or part, to commit, or to facilitate the commission of, a
violation of this subchapter punishable by more than one year's
imprisonment * * *."

Each of those provisions has an "innocent owner" exception, see 21 USC §§ 881(a)(4)(C)
and (a)(7), but has no provision requiring, or allowing, the trial court to consider whether
forfeiture would be excessive.

In response to Austin, the Oregon legislature enacted ORS 475A.100 in 1993 to
supplement Oregon's drug-related in rem forfeiture statutory scheme to avoid excessive
punishment claims under the Eighth Amendment. See Tape recordings, Senate Judiciary
Committee, HB 2381, June 28, 1993, Tape 203, Sides A and B, and Tape 204, Side A;
July 16, 1993, Tape 221, Side B, and Tape 222, Side B; July 30, 1993, Tape 235, Side A,
and Tape 236, Side A. ORS 475A.100 specifically requires the trial court to consider
"whether any portion of the proposed judgment of forfeiture is excessive" and lists the
particular factors that the court must consider. For purposes of Article I, section 16, a
forfeiture under ORS 167.347 should not be treated differently from a forfeiture under
ORS 475A.100.